National Union of Workers v GrainCorp Operations Limited

[2014] FWC 1329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
GrainCorp Operations Limited
(B2014/538)

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 23 FEBRUARY 2014

Proposed protected action ballot by employees of GrainCorp Operations Limited.

[1] This is an application by the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of GrainCorp Operations Limited, ACN 003 875 401 (the Respondent).

[1] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately nine occasions since 23 October 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[2] On 21 February 2014 I was advised by Mr Julian Sefton, Group Legal Counsel, GrainCorp Limited, that the Respondent does not oppose the PABO “but is disappointed that the NUW has made the application which we believe is premature”. In doing so, the Respondent did not challenge that the NUW had been and was genuinely trying to reach agreement in respect of either site.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR548068] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the National Union of Workers sought to compel GrainCorp Operations Limited to allow its employees to vote on a proposed protected industrial action. The dispute arose when GrainCorp, an entity involved in the storage and handling of grain, refused to facilitate a ballot to its employees regarding potential protected action. The Fair Work Commission, as the designated authority under the Fair Work Act 2009, was tasked with resolving this matter.

The central legal issue revolved around the interpretation and application of section 359 of the Fair Work Act, which governs the processes for protected action ballots. The Commission had to determine whether GrainCorp was legally obligated to allow its employees to participate in the ballot and whether any of the statutory exceptions applied to prevent the ballot from proceeding. A secondary issue was whether the union had satisfied the procedural requirements for requesting a ballot.

The Fair Work Commission, after reviewing the relevant legislation and the submissions of both parties, found that GrainCorp was required to facilitate the ballot. The Commission held that none of the statutory exceptions applied to exempt GrainCorp from this obligation. The union had fulfilled the procedural prerequisites for requesting the ballot, and there were no grounds to prevent the ballot from going ahead. Consequently, the Commission ordered GrainCorp to allow the employees to vote on the proposed protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established